This short post is triggered by George Will’s recent column, www.washingtonpost.com/... in which he points out the hypocrisy of Rs rushing to fill the late Justice Ginsburg’s seat after denying a hearing to Merrick Garland. I agree with that observation, but not this bit of bothsiderism:
Republican senators correctly say that Senate Democrats, given a comparable opportunity, would behave with identical loutishness.
Present-day Senate Democrats won’t get a chance to test that speculation, but it’s worth noting that their 1968 predecessors did. See en.wikipedia.org/… and en.wikipedia.org/… . That’s not how they behaved.
After Chief Justice Earl Warren, in June 1968, announced he’d retire if and when a successor was confirmed, President Johnson nominated already-seated Justice Fortas as Chief Justice and nominated Circuit Court Judge Homer Thornberry to take Fortas’s seat as Associate Justice. Fortas’ elevation ran into a Senate filibuster, with the decisive vote against cloture occurring on October 1, 1968. (Fortas formally withdrew from consideration as Chief Justice three days later.) At that point, Johnson could have pressed ahead for designation of Thornberry to take Warren’s seat while designating a different seated Justice to become Chief or deferring that designation. Instead, Thornberry’s nomination was deemed moot, and the court was left as it was until 1969, after President Nixon’s inauguration, when (a) Nixon nominated Warren Burger to replace Earl Warren, and (b) Fortas, later that year, resigned due to conflict of interest allegations, and was replaced by a second Nixon nominee (Justice Blackmun).
Election Day 1968 was Nov. 5, so the interval from October 1 to then was virtually identical to the interval between the anticipated 9/26/20 designation of a nominee to replace Justice Ginsburg and 11/3/20. (Only one business day difference, I think.) Although Humphrey made up considerable ground late in that election, Nixon was widely expected to win throughout this period, as of course he eventually did.
To be clear, I’m not holding the filibuster of Fortas up as a model of deliberative democracy. It was spearheaded by Pat Buchanan and Strom Thurmond and cast Fortas as a friend of pornography for his stances on the First Amendment. And anti-Semitism likely played a role. But it was an instance where Senate Democrats could have rushed to fill a S.Ct. seat shortly before the anticipated inauguration of a Republican President, and did the opposite.
And this episode is a key reason that there has been no D-appointed Chief Justice in 67 years — since Fred Vinson died in 1953 — even though Ds have won the popular vote in 9 of 16 (going on 10 in 17) subsequent Presidential elections.